Westbrook v. State
| Decision Date | 28 May 1887 |
| Citation | 5 S.W. 248 |
| Parties | WESTBROOK v. STATE.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Davis & Woodruff, for appellant. W. L. Davidson, Asst. Atty. Gen., for the State.
This is an appeal from a judgment of conviction upon an
indictment, the charging part of which is that defendant "did then and there
without lawful authority, and with intent to injure and defraud, willfully
and fraudulently make a false instrument in writing, purporting to be the act
of another, to-wit, the act of C. J. Chapman, which said false instrument is
to the tenor following: `SEPTEMBER 20, 1886. Mr. E. A. Bledsoe — DEAR SIR
Please sell Mr. Westbrook twenty or twenty-five dollars worth of goods, and
his
I will be down in 8 or 10 days and settle for them. C. J. X CHATMAN,' —
mark
against the peace and dignity of the state."
This indictment was not attacked in the court below, nor has its validity been questioned by appellant's counsel on appeal. We are of opinion, however, that the indictment is fatally defective, in that there is an irreconcilable repugnancy between its purport and tenor allegations. By its purport clause it charges that the forged instrument purports to be the act of one Chapman; by its tenor clause it sets out in hœc verba an instrument executed by one Chatman. As set forth, the instrument certainly does not purport to be the instrument of one Chapman. It was unnecessary to set out the name of the party to be defrauded, because the statute expressly provides that, in any case where an intent to defraud is required to constitute an offense, it shall be sufficient to allege an intent to defraud, without naming therein the particular person to be defrauded. Code Crim. Proc. art. 408.
The question here presented was somewhat elaborately discussed by us in Roberts v. State, 2 Tex. App. 4, and the following rules of law enunciated, quoting from Mr. Bishop: ...
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State v. Weaver
... ... transaction, it has been thought to be superfluous to make ... such an allegation, and accordingly statutes have been passed ... in various states declaring such an allegation to be ... immaterial. State v. Cleavland, 6 Nev. 181; ... Westbrook v. State, 23 Tex. Ct. App. 401 (5 S.W ... 248); Davis v. State, 58 Neb. 465 (78 N.W. 930); ... Roush v. State, 34 Neb. 325 (51 N.W. 755). And it ... has been expressly held that such a statute does not deprive ... the defendant of any essential right. Commonwealth v ... Butterick, 100 ... ...
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State v. Weaver
...have been passed in various states declaring such an allegation to be immaterial. State v. Cleavland, 6 Nev. 181;Westbrook v. State, 23 Tex. App. 401, 5 S. W. 248;Davis v. State, 58 Neb. 465, 78 N. W. 930;Roush v. State, 34 Neb. 325, 51 N. W. 755. And it has been expressly held that such a ......
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Flanagan v. State
... ... Cox v. State, Tex.Cr.App., 608 S.W.2d 219 (1980); Escobar v. State, Tex.Cr.App., 578 S.W.2d 139 (1979); Grant v. State, Tex.Cr.App., 568 S.W.2d 353 (1978). See also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ... Westbrook v. State, 23 Tex.App. 401, 5 S.W. 248 (Court of Appeals 1887), is directly in point to this cause for there we held Chapman and Chatman are not the same name and are not idem sonans as a matter of law. See also Branch's Ann. Penal Code, Second Edition (1956), Vol. I, page 32. The indictment and ... ...
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